Lawyers and trade unions say UK employers could face a barrage of legal action from employees over inadequate measures to protect them from the spread of Covid-19 when lockdown eases.
Alok Sharma, business secretary, will this weekend produce “workplace by workplace” guidance on how companies can safely reopen to workers, requiring a myriad of different approaches across industry.
Lawyers say companies already under strain from the fallout of the pandemic could be hit with a raft of employment claims ranging from constructive dismissal to negligence if they do not stick to guidance or workers feel unsafe.
Employers could face constructive dismissal claims if they breach the “trust and confidence” they owe workers under UK employment law — for example by failing to provide an adequate safe place to work.
“If employees can say they’re being compelled to work in an environment that’s considered unsafe and doesn’t meet the [standards of] the new normal you could see employees treating themselves as discharged,” said Joanna Blackburn, employment partner at Mishcon de Reya. “The ramifications can be very wide.”
One senior union official said he was expecting a wave of legal actions where rogue employers failed to maintain appropriate workplaces while coronavirus remains a threat.
“Technically it remains the case that all employers should have to provide a risk assessment, and if circumstances change that risk assessment needs to be updated to reflect the changed circumstances,” he said.
Workers who catch coronavirus after returning to work could bring negligence cases against their employer on the grounds of health and safety — though they are unlikely to be able to prove they caught the virus in the workplace.
“If an employer has been negligent in their approach towards employee health and safety then yes there can be liability but . . . it is a complex issue of causation,” said Ms Blackburn.
Workers can also avoid being dismissed for refusing to work if they reasonably believe they are in “serious and imminent danger”. Lawyers say that even if claims are not mounted against them, employers will face difficult legal questions about how to handle workers who remain home.
“I’m not sure the risk of constructive dismissal is high because people are unlikely to want to take themselves out of a job right now,” said Sarah Henchoz, a partner at Allen & Overy. “But it’s likely that employees will say they are not well enough to come back for a variety of reasons.”
Julia Wilson, employment partner at Baker McKenzie, said employees refusing to return was “a knotty legal problem. Who wants to discipline someone in these circumstances?”
Companies could also find themselves on the hook for failing to provide adequate PPE to workers.
Frances O’Grady, TUC general secretary, said: “Employers must carry out proper Covid-19 risk assessments, and work in advance with unions to agree safe working practices. If they fail to do this, the HSE has been clear that they face the threat of prosecution.”
The TUC has called on the government to set up a national recovery council with unions and employers “to ensure safe systems of working are put in place across every industry and workplace”.
Union officials also believe that some care homes and hospital trusts could face legal action where there is “clear evidence” that they have failed to protect staff from the pandemic.
“Where there is evidence of a particular failure to issue adequate PPE or protect staff, or a particularly increased rate of exposure to the virus, you could expect legal action,” said one senior official.